MUHAMMAD AFZAL CHEEMA, J.-Abdur Rashid alias Sheeda (25) was tried by the learned Additional Sessions Judge, Lyallpur, on to counts firstly; under section 460, P. P. C. For having trespassed into the house of Ali Ahmad deceased on the night between 19th and 20th October 1966 in Chak No. 223/R. B., District Lyallpur and, secondly, under section 302/34, P. P. C. For having murdered him and his relation Inayat with the help of Chiragh and Sanatta, to absconding co-accused. Vide judgment dated 26-8-1968, the learned Judge convicted the appellant on both counts (1) under section 460, P. P. C. With an award of five years' R. I. And (2) under section 302/34, P. P. C. With the award of capital punish--ment. He has appealed against his conviction and sentences and his case has also been referred to us under section 374, Cr. P. C. For the confirmation of the death sentence. This judgment will dispose of the appeal as well as the Murder Reference.
2. The relevant background of the case according to the prosecution is that about three years prior, to the occurrence Sheeda appellant, a weaver of Chak No. 225/R. B., District Lyall--pur, apparently a man of dubious antecedents, started living with his wife Mst. Maqsoodan in Abadi Kartar Singhwala of Chak No. 223/ R. B. Where the to deceased also lived. On conviction in case of theft, he was sent to jail and in his absence Mst. Maqsoodan was maintained by Ali Ahmad deceased as a keep in his house. After more than a year, she was handed over by the deceased to his Pir (Spiritual leader)
Karim Khan Pathan of Chak No. 116 of Police Station Jaranwala who got her married to his brother Amin Khan presumably after she had obtained a decree for dissolution of her marriage with the appellant. It appears that on his release from jail the appellant, whose movements were restricted in Chak No. 225/R. B. His permanent place of residence, contacted Ali Ahmad deceased to seek restoration of his wife and on his refusal threatened him with dire consequences. Apprehending danger to his life, Ali Ahmad deceased submitted on 26-9-1967 application Exh. P. U. To the Inspector-General of Police seeking protection of life and initiation of security proceedings against the appellant. In this application there is also a reference to the appellant's abscondence from jail and subsequent arrest. Appre--hensions of a dacoity were also expressed therein. It is not clear, however, what action, if any, was taken on this application.
3. On the fateful night, Ali Ahmad deceased and Maulvi Muhammad Shafi P. W. 12, an Imam of the local mosque, were sleeping in the bethak of the deceased, indicated at point No. 1 in the site plan Exh. P: D., while Inayat deceased and Chiragh Muhammad P. W. 16, a brother of the sister's husband of the deceased, were sleeping inside in the verandah, shown at points Nos. 2 and 4 in the site plan.
Mst. Rani P. W. 13 and Mst. Raj Bibi P. W. 14, the to daughters of Ali Ahmad deceased, slept inside the room in the rear of the verandah along with Mst. Anwar P. W.
15. About an hour or so after midnight, the deceased and Maulvi Muhammad Shafi heard the sounds of foot-steps of some persons in the lane and also heard someone bolting the door of the bethak from outside. Then came a knock at the door with a firm demand to the inmates to open it. The query by Ali Ahmad deceased fetched no reply which alerted the deceased, who told Maulvi Muhammad Shafi that his enemy had come.
The assailants scaled over the outer wall of the courtyard and breaking open the inner door of the bethak forced their entry therein. They were three in number and carried guns with them. The attack was opened by Sheda appellant, who fired to shots at Ali Ahmad deceased in quick succession hitting him in the neck and on the left leg. They then turned towards Maulvi Muhammad Shafi P. W., who on enquiry told them that he was a poor Imam of the local mosque. Sheda appellant caught hold of him by the arm and took him outside the bethak. In the meantime, Inayat deceased, who was sleeping in the verandah, on hearing gun. Reports, pro--ceeded towards the bethak, but was hit in the chest near the throat by one of the absconding accused. On receipt of injury, he immediately returned to the verandah and set on the floor. The first shot was followed by a second shot by Sheeda appellant hitting him oil the head. Ali Ahmad and Inayat succumbed to the injuries instantaneously. The appellant and his to companions then went to the rooms where the girls were sleeping. Sheeda allegedly demanded keys from them, but was told by Mst. Rani P. W.
That the keys were with their mother, who had gone to Gojra for treatment of her eyes. The accused then broke open a box, and took out as contents consisting of some garments and, jewellery. It is also in evidence that at the relevant the one lantern was burning in the bethak and the other in this room which were put out by the culprits. The appellant is also stated to have given to rupees each to the to daughters of Ali Ahmad deceased telling them that he had no grudge against them and had killed their father, who was his enemy. It is also in evidence that a fourth accused stood outside firing in the air. The assailants made their exit from the door of the deorhi. After their departure, Maulvi Muhammad Shafi came out of the house and met Wali Muhammad complainant P. W. 11, giving him details of the occurrence. This witness, who was the sister's husband of Ali Ahmad deceased, as also his cousin proceeded to Police Station Sadar, Lyallpur, and lodged report Exh. P.
C. At 5-15 a.m., after traversing a distance of five miles, which was recorded by Abad Muhammad A. S. I. P. W.
3. In this elaborate report, besides giving details of 14 allegedly stolen articles, he also referred to the theft of some cash, of which he could not give the details. Abad Muhammad Khan A.
S. I. P. W. 3, who recorded the F. I. R. Exh. P. C., sent a copy of the same after Anwar Hussain Shah S. I.
P. W. 17, who was out of station. The latter reached the spot at about 8 a.m., prepared injury statements Exhs. P. S. And P. T. And inquest reports Exhs. P. G. And P. H. Of Ali Ahmad and Inayat deceased respectively. He sent both the dead bodies for post-mortem examination under the escort of F. Cs. Muhammad Ashraf P. W. 2 and Ghulam Haider. The former brought back to him blood-stained clothes of Ali Ahmad deceased shirt P. 1 and Chadar P. 2, along with a phial containing pellets P. 3, extracted from his body, which were taken into possession vide memo. Exh.
P. E. Muhammad Ashraf also produced before him blood-stained clothes of Inayat deceased, i. e.
Vest P. 4 and Lungi P. 5, which were taken into possession vide memo. Exh. P. F. He recovered blood- stained earth from' to places vide memos. Exhs. P. J. And P. N., where the dead bodies of Ali Ahmad had been found respectively. Pillow P. 6, Khes P. 7 and blood-stained quilt Exh. P. 8 were also taken into possession; vide memo. Exh. P. K., from the bethak of Ali Ahmad, in addition to a lantern P. 9, which was recovered vide memo. Exh. P. L. Three empty cartridges found from outside the house near the outer door and four empty cartridges found near the inner door of the bethak inside the courtyard and one cartridge from the courtyard were recovered vide memo. Exh. P. M. And made into a sealed parcel. Trunk P. 10 and lantern P. 11 were also taken into possession from the inner room where the ladies lay asleep vide memos. Exh. P. Q. And P. R. Respectively. The Sub-Inspector also got prepared plan Exh. P. D. In duplicate by Aurangzeb Draftsman P. W.
6. Recovery memos. P. L.
To P. R. Were witnessed by Muhammad Aslam, Member, Union Council Chak No. 223/R. B., P. W. 10 and Ghulam Qadir, another, Member Union Council, who was murdered before the commencement of the inquiry, and, as such, could not be produced. The sealed parcels, containing blood-stained earth and cartridges, were made over by the S. I. To Abad Muhammad M.
H. C. On 24-10-1966 for safe deposit in the Malkhana which, on the following day, were sent to the Forensic Science Laboratory, Lahore, through F. C. Muhammad Yaqoob P. W. 4 and were found to be stained with blood, vide Chemical Examiner's report Exh. P. V., determined to be of human origin vide Serologist's report Exh. P. X.
4. Dr. Ahmad Ghulam Muhammad, Medical Officer, District Headquarters Hospital, Lyallpur, performed the post--mortem examination .Of the to dead bodies on 20-10-1966 at 4 p.m. The dead body of Ali Ahmad was found to be of stout built. The blood-stained shirt and Chadar on his person bore corresponding tear marks to injuries Nos. 4, 5 and 6 on the shirt and 7, 8, 9 on the Chadar. Vide memo. Exh. P. A. The doctor found the following injuries on his person :--
(1) A gun-shot wound 1" x 1", going inside the mouth 'situated on the left side of the face --" from the left angle of the mouth. There was blackening and scorching around the injury. It was the wound of entry.
(2) A gun-shot wound 6" x 3--" on the right side of the face 1" below the right ear. The facial bones and the jaw bones were blown of. The tongue was badly injured. It was the wound of exit.
(3) A lacerated wound 1--" x --" x skin deep close to the right shoulder joint in the region between the neck and the shoulder joint;
(4) A pellet wound 3/8" x 3/8" going inside the chest situated on the front aspect of the left side of the chest 2--" below the nipple and 1" to its outer side.
(5) One pellet wound --' x --" going inside the chest situated on the front aspect of the left side of the chest 2--" below the left nipple and half inch to outside of it.
(6) One pellet wound --" x --" going inside the chest cavity situated on the front aspect on the left side of the chest --" below injury No. 5.
(7) A pellet 3/8" x --" going superficially inside the thigh obliquely on the front aspect of the left thigh upper part. It was the wound of entry.
(8) A pellet wound which was the wound of exit --" x --" on the front aspect of the left thigh --' from injury No. 7.
(9) A pellet wound 3/8" x --" going obliquely in the thigh situated at the back of left thigh in its middle.
(10) A pellet wound which was wound of exit -- x --" at the back of the left thigh in its middle --" from injury No. 9.
(11) A gun shot wound 4--" x 2" bone deep on the outer aspect of left leg lower part. Fibula bone was fractured.
(12) A gun-shot wound 2-- x 1--" x --" deep on the dorsum of the left foot in its outer aspect. The proximal phalynx of the fifth toe was fractured.
The fourth and fifth ribs were found to be fractured on the left. All the organs were healthy. The left pleasure was torn. The left lung was pierced through and through at three places due to injuries Nos. 4, 5 and 6. All other organs were found to be healthy The penis was completely cut of from the root. The scrotal skin was cut exposing the testicles. The penis was found to be thrust in the mouth.
Stomach was empty and bladder full of urine. Death in the opinion of the doctor was due to shock and heamorrhage on account of damage to the left lung and as a result of injuries Nos. 1, 2, 4, 5 and 6 which were individually and collectively sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 11 and 12 were grievous in nature. All the injuries were caused by a fire arm.
A piece of card-board and a pellet were recovered from inside the mouth besides to pellets recovered from the chest cavity. Probable the between injuries and death was a few minutes and between death and post--mortem 13 to 14 hours. The blood-stained vest of Inayat deceased bore three tears corresponding to injuries Nos. 4, 5 and 6.
5. The details of injuries of Inayat deceased as given in medico-legal report Exh. P. B. Were as follows :-
(1) A gun-shot wound 1" x --" x bone deep situated on the chin. The mandible bone was fractured.
There was scorching and blackening around the injury.
(2) A gun-shot wound 2" x 2" on the right side of the head going inside the skull 1--" above the right ear. It was the wound of entry. Brain matter was coming out of the wound. There was blackening and scorching around the injury.
(3) A gun-shot wound which was the wound of exit 4" x 2" situated on the left side of the head 1" above the left ear. Brain matter was coming out of the wound. The skull bone was smashed.
(4) Three pellet wounds each --" x --" going inside the chest situated at the back of the left side of the chest close to each other in the upper part.
(5) A pellet wound --' x -- which was the wound of exit on the front aspect of the left side of the chest J" below the clavicle bone.
(6) A pellet wound --" x --" which was the wound of exit on the front aspect of the left shoulder joint in upper part.
(7) A pellet wound --" x --" which was the wound of exit on the front aspect of the left side of the chest --" below injury No. 5.
(8) A pellet wound --" x -- on the front aspect of the left side of the neck going obliquely below the skin.
(9) A pellet wound --" x --" which was the wound of exit half inch medial to injury No. 8 on the left side front aspect of the neck.
The skull was badly smashed and parietal and occipital bones were fractured on both sides. The membranes were badly torn. The brain was injured and brain matter was coming out of the head wounds. Stomach and bladder were empty and all other organs were found to be healthy. Death, in the opinion of the doctor, was due to shock and haemorrhage on account of injuries to brain.
Injury No. 3 was an exit wound. All the injuries were caused by a fire arm. Injury No. 4 had fractured the left scapula bone. Probable the between injuries and death was about half a minute and between death and post-mortem 14 to 15 hours.
6. On completion of investigation, Sheeda appellant who alone could be apprehended, was sent up to face inquiry and, as stated earlier, on commitment, was tried and convicted by the Additional Sessions Judge, Lyallpur.
7. At the trial, the prosecution case rested principally on the testimony of five eye-witnesses, namely, Muhammad Shafi P. W. 12, Mst. Rani P. W. 13 and Mst. Raj Bibi P. W: 14, daughters of Ali Ahmad deceased, Mst. Anwar P. W. 15 and Chiragh Muhammad P. W. 16, Wali Muhammad complainant P. W. 11 and the evidence of extra judicial confession deposed to by Muhammad Ali P.
W. 8 and Nur Muhammad P. W. 9.
7-A. Placing reliance on the testimony of Wali Muhammad P. W. 11 and that of the eye-witnesses, the learned trial Judge came to the conclusion that the existence of a strong motive was established against the appellant and further that there was no doubt as to his identity as proved by the statements of the P. Ws. In fact, the appellant had himself admitted in his statement under section 342, Cr. P. C. That he had been taking Panchaits to Ali Ahmad deceased for the restoration of his wife, and yet, in the same breath, went on to say that he had no grudge against him. It would be advantageous to reproduce the defence plea in his own words: "All Ahmad deceased was a man of bad character. He used to deal in women. I demanded my wife from him through panchayats and he had been putting me of. I had no grudge to kill him. Some one of his enemies had killed him at night and I have been named because of suspicion."
8. Learned counsel for the appellant raised the following contentions before us :-
(1) that assuming that Sheeda appellant had a strong motive to kill Ali Ahmad deceased on account of his dispute with him over his wife, it is incredible that he should also have resorted to committing theft of articles, none of which was recovered after the fulfilment of his principal mission.
(2) that the eye-witnesses' account given by the P. Ws., some of whom were admittedly tutored by the appellant, was full of material inconsistencies and discrepancies.
(3) that none of the inmates of the neighbouring houses appeared in support of the prosecution version.
(4) that the identity of Sheeda appellant does not stand fully established and, at best, it would be a case of a very strong suspicion, which could not take the place of legal proof.
9. Having considered the contentions raised by the learned counsel, we have not been able to see much substance in them. In the first instance, application Exh: P. U. Dated 26-9-1966, addressed by the deceased to the Inspector-General of Police, which appears to have reached S. I. Anwar Hussain Shah P. W. 7 sometime after the occurrence, furnishes a strong evidence of motive. Wali Muhammad complainant gave the details of the stay of Mst. Maqsoodan with Ali Ahmad deceased during the appellant's detention in jail and of the latter's unsuccessful efforts to seek her restoration. He stated in cross-examination that "Met. Maqsoodan had been living with Ali Ahmad deceased by way of adulterous companionship and she also gave birth to to children out of the cohabitation." In. This, Wali Muhammad was fully supported by Mst. Rani P. W. 13, who observed as follows: "Sheeda accused used to visit our house and was on friendly terms with our father. When he was jailed, he left his wife in our house. The wife of Sheeda accused lived in our house for about to years . . . . . It is a fact that when Sheeda accused was released from jail, he came to my father and asked for the return of his wife."
As stated earlier, this position was frankly conceded by the appellant in his examination under section 342, Cr. P. C. Another significant fact, namely, the cutting of the penis and thrusting it into the mouth of Ali Ahmad, would also unmistakably suggest that the commission of the offence was motivated by a strong sense of vengeance having some sexual background.
10. The next important point, which really formed the crux of the matter, however, is whether the appellant was identified by the P. Ws. At the spot. Wali Muhammad complainant P. W. 11, who himself was not an eye-witness, but was the first to reach the spot, stated in his examination-in- chief as follows :- "Muhammad Shafi had related the incident to me like this: Four persons came to the house of Ali Ahmad and had murdered him. He had also told me that the culprits could not be identified by him. However, when Muhammad Shafi left me he mentioned the fact that one of the culprits, while leaving the scene of offence, was making a lalkara, `I am Sheeda'."
This position was reiterated by him in answer to a question in cross-examination in the following words :- "I was told by him that one of the culprits, while leaving the place of occurrence, was shouting by claiming himself to be Sheeda. He had further said that as Sheeda was entertaining enmity against Ali Ahmad deceased and also one of the accused person styled himself to be Sheeda, the murder must have been committed by Sheeda and his friends."
He added, "Muhammad Shafi hall told me that the culprits had muffled their faces and it was dark".
Three things would emerge from the above statement (1) firstly, that the claim of Muhammad Shafi, having met Sheeda appellant in the jail once or twice in the company of Ali Ahmad deceased, who had allegedly taken him to show him the husband of the woman he was keeping, stands falsified. (2) that the culprits had muffled their faces. (3) that one of them styled himself as Sheeda.
11. Next comes Muhammad Shafi before whom the bloody drama was staged and who was spared by Sheeda being a poor Imam of the mosque. According to him, Sheeda after having fired the fatal shots at Ali Ahmad deceased, caught hold of his arm, dragged him outside the bethak and then releasing him fired a fatal shot at Inayat hitting him in the head. According to this witness, the culprits next entered the room where 'the girls were sleeping. Sheeda told them that he had come to take revenge from their father for having kept his wife, demanded the keys from them, broke open the trunk and before leaving gave to rupees each to the to daughters of Ali Ahmad deceased telling them that he had no grudge against them. This witness told in cross--examination as follows :- "I do not perfectly remember as to which of the accused persons had asked about my identity when they entered the bethak. I have mentioned the name of Sheeda accused by guess only."
Notwithstanding all this, we have every reason to believe that Mst. Rani P. W. Knew Sheeda before the occurrence as a former friend of her father who, on his release from jail, visited their house to seek restoration of his wife. She supported Maulvi Muhammad Shafi on the point of the demand of keys and the gift by Sheeda of to rupees each to her and to her sister. She stated:- "Sheeda then gave me and my sister to rupees each and told us that he had done away his father who was his enemy. When the accuse) were about to leave the house they threw the lantern lying in the room."
She stated in cross-examination :- "While I was in my room, I heard `raula' being raised by Sheeda accused. I am Sheeda, I am Sheeda . . . . They (culprits) told us that they were sparing us because we were daughters of the house."
In reply to another question, she told that in fact one of the culprits had muffled his face and the faces of Sheeda and Sanatta were not muffled. She denied the suggestion that the thieves could not be identified by her as it was dark and they had muffled their faces.
11-A. This brings us to the statement of Mst. Raj Bibi P. W. 14, a young girl of ten years of age. She also repeated the version given by her sister Mst. Rani P. W. And specifically referred to the demand of keys, the breaking open of the box, removal of clothes and jewellery from it and to the gift of rupees to each by Sheeda to her and to her sister as also to the throw--ing away of the lantern. No doubt in cross-examination she conceded that the Thanedar had read out a statement to her telling her that she should state that Sheeda, Jaulaha and to others had come to their house at night and had fired at and killed Inayat and her father and it was because of that she had made the statement. She, however, asserted that Sheeda had not muffled his face although his to companions ad done so. She added that it was pitch dark and that it was her uncle Wali Muhammad who had told them that the culprits were Sheeda and his com--panions.
12. We next come to Mst, Anwar P. W. 15,-according to her, her father and Ali Ahmad deceased were the disciples of the same Pir and, perhaps, it was on account of this spiritual relationship that she happened to sleep with the daughters of Ali Ahmad on the fateful night. Going back on her statements before the Police and the committing Magistrate, this witness appears to have softened her attitude towards the appellants. She could not give the number of the assailants. She could not describe the weapons wielded by them, but, however, admitted that one of the accused persons had told them that they need not fear as he had no grudge against them having already killed his enemy. She further added that he gave to rupees each to Rani and Mst. Raj Bibi, the.
Daughters of Ali Ahmad deceased. Being confronted with her statement before the committing Magistrate, she admitted it to be correct and attributed her ignorance of the number of the culprits or the weapons used by them to lapse of memory.
13. Lastly, we come to Chiragh. He frankly stated in his examination-in-chief that he did not identify the assailants, that a fourth companion of the culprits, who stood guard outside the house, kept firing and was heard saying that Sheeda had come to take revenge of his wife. He claimed to have known and identified Sheeda and Sanatta, whose faces were covered. According to him, one of the culprits had muffled up his face. Earlier, before the committing Magistrate, with which he was duly confronted, this witness had stated that Sheeda and his companions had partly covered their faces. He further stated that at the the when Inayat deceased was fired at, one of the culprits had remarked that Sheeda had come and that this utterance was made by the accused, namely, Sheeda, who had fired at Inayat.
14. Having carefully analysed the above evidence in the context of the discrepancies in the statements of the P. Ws., the improvements made by Muhammad Shafi and Chiragh, of whom the latter was a chance-witness, the untenability of the claim of Muhammad Shafi of having seen Sheeda in jail, we are, neverthe--less, clearly of the view that the identity of Sheeda appellant stands established beyond any reasonable doubt and was rightly held to be so by the learned trial Judge. (i) We have already referred to the significant fact of the cutting of the penis of Ali Ahmad deceased and thrusting the same in his mouth which is indicative of a strong sense of vengeance.
But this per se would only give rise to a suspicion, howsoever strong, which cannot take the place of proof positive of the identity of the appellant. (ii) Notwith--standing the minor discrepancies in the statements of the three girls, we are convinced that Mst. Rani had no difficulty in identifying Sheeda, a former friend of her deceased father, who had been visiting their house. (i.e) We have no hesitation in believing that either at the the of arrival in his enthusiasm he had come to take revenge or before his departure after the success--full fulfilment of his mission in a fit of jubilation Sheeda had proclaimed himself. (iv) Further support is lent to this by the significant gift of to rupees each to the to daughters of Ali Ahmad deceased telling them that he had no grudge against them and had come only to kill their father who had kept his wife. This has been consistently deposed to by all the eye-witnesses. It could be argued that such a moral sensibility on the part of a murderer would be hardly consistent or compatible with his criminality. In view of the subtle intricacies of the human mind and unexplored depths of human psychology, we do not consider this apparently inconsistent conduct as something inconceivable. It is common knowledge that sometimes murderers and dacoits have been found to be quite charitable. No wonder,' therefore, if after having successfully completed his mission, the appellant made this- gesture of goodwill towards the daughters of his former friends.
15. It would, perhaps, be argued that the theft of clothes and jewellery would not fit in with a bloody mission actuated by a sense of honour or a feeling of betrayal by an erstwhile friend and further that the conspicuous non-recovery of even one of the fifteen allegedly stolen articles which also lent support to the view that the allegations were false. Having considered this aspect of the matter, in the context of timings of occurrence and the report lodged without delay at the police station at a distance of five miles, we think that it is not a case of an embellished report lodged after consultation and conference. No doubt, normally assaults made with the object of committing murders would not be accompanied by thefts or robbery, but this combination is not of a rare occurrence so as to create doubt. The demand of keys by the culprits from the girls and their non-availability followed by the breaking open of the box and removal of articles have been consistently deposed to by all the eye-witnesses coupled with the recovery of a broken trunk P. 10 would clearly substantiate the allegations of theft. The contention is, therefore, overruled.
16. The upshot of the discussion, therefore, is that the offence was brought home to the appellant, who was rightly con--victed and sentenced. The appeal, therefore, fails and is hereby dismissed.
The sentence of death is confirmed.
BASHIRUDDIN AHMAD, J.-The facts and the evidence has been ably set out in the judgment proposed to be delivered by my learned brother Muhammad Afzal Cheema, J. And it would be idle on my part to recapitulate the same. Speaking for myself, the circumstances and the evidence in this case is strewn with grave improbabilities. The inconsistencies in the evidence of witnesses, in their statements before the committing. Magistrate and at the trial are stitch that it is not possible to reconcile or rely on the evidence to fix the identity of the culprit or the culprits including the appellant. Wali Muhammad, the maker of the first information report, who was examined as the l lth witness for the prosecution stated as below :- "Muhammad Shafi had related the incident to me as this Four persons came to the house of Ali Ahmad and had murdered him. He had also told me that the culprits could not be identified by him. However when Muhammad Shafi left me, he mentioned the fact that one of the culprits, while leaving the scene of offence was making a lalakara, 'I am Sheeda'."
He had further said that as Sheeda was entertaining enmity against Ali Ahmad deceased and also one of the accused person styled himself to be Sheeda, the murder must have been committed by Sheeda and his friends.
2. Maulvi Muhammad Shafi (P. W. 12) mentioned in his statement-about the existence of a lantern and claimed to have identified Sheeda as he had seen him previously, While he was serving a term of imprisonment in jail. According to Maulvi Muhammad Shafi, Sheeda had not his face muffled at the the of the occurrence. In the course of the statement of this witness, the learned trial Judge observed as under :- "The witness being confronted to his statement above to the effect, that he saw Sheeda accused once in the Jail and besides that occasion he had only seen Sheeda on the night of occur--rence, he did not give a satisfactory answer and stated that as on the second occasion Ali Ahmad deceased was sent for by the accused by a special message, he, therefore, did not mention this occasion in his statement above."
Maulvi Muhammad Shafi did not mention in hid statement before the committing Magistrate that when Sheeda accused entered the room occupied by the girls, he told them that he was Sheeda and, he had killed their father because the latter had taken away his wife. He did not state to the committing Magistrate that Sheeda accused had questioned him if he would give evidence against him and he had replied in the negative.
Mst. Rani (P. W. 13) stated to the committing Magistrate that she alongwith her sister Mst. Anwar Begum remained inside their room after hearing gun-fire and came out of the room for the first the when Abdur Rashid and his companions left the spot. Mst. Raj Bibi (P. W. 14) candidly admitted that the Thanedar read out to her the statement and had told her that she should say that Sheeda Julaha and to others had come to, their house at night and they had fired at and killed Inayat and Ali Ahmad and it was because of this tutoring that she made the statement at the trial. She admitted further that the Thanedar had given similar instructions to her sister Mst. Anwar Begum and the other witnesses as regards the statement to be made in Court. It is also in the statement of this witness that it was pitch dark at the the of occurrence and that her uncle Wali Muhammad P.
W. Had told them on arrival that the culprits were Sheeda accused and his companions. I need not refer to the evidence of Mst. Anwar Begum because she was not relied on by the trial Court Chiragh Muhammad (P. W. 16) made a categorical statement that he slid not identify any of the assailants.
Chiragh Muhammad was casually there at the house of Ali Ahmad on the night of the alleged occurrence. He belongs to Chak No. 33-J. B. Which is 17 miles away from the place of the occurrence. The witness omitted to mention either in his statement before the police or the committing Magistrate that at the the of firing at Inayat deceased, one of the culprits proclaimed that Sheeda had conic to take revenge. Chiragh Muhammad stated to the committing Magistrate that Sheeda and his companions had partly covered their faces and their eyes, mouth and nose were visible. This knocks out the claim of the other witnesses who say that they were able to identify Sheeda because he had not muffled his face and that he openly declared himself to be Sheeda who had come to take revenge.
3. The more I read through the statements of the ocular witnesses, the more I get convinced that they are not telling the truth. The circumstance that the penis of one of the deceased was cut and thrust in his mouth no doubt raised strong suspicion that in all probability the crime was perpetrated by the appellant, but suspicion, however grave, cannot take the place of judicial proof, as remarked by my learned brother in the course of the judgment proposed to be delivered by him.
The night was admittedly dark and there were no other means with the witnesses to identify the miscreants. The story regarding the existence of lanterns is belied by its omission from the report to the police. The evidence of the to girls that they were given to rupees each by the appellant after 'he had perpetrated the crime is simply preposterous. The appellant as a person of ordinary common sense should not have announced that he was Sheeda and had come to avenge himself, particularly when he had selected the dark hours of the night for the commission of the crime and had taken precaution to conceal his identity by muffling his face. The possibility abut any other desperado having been concerned in the commission of house-breaking by night for committing theft and proclaiming himself as Sheeda knowing that he had a motive for the commission of murder could not be ruled out in this case to moral certainty. This part of the prosecution seems to be the result of ingenuity on the part of the investigating officer who in all probability introduced in the evidence that the appellant pro--claimed himself because he could not be otherwise identified in a pitch dark night. The tenor of the evidence in this case is such that I feel it not safe in the dispensation of criminal justice to maintain the conviction of the appellant and much less to confirm an irrevokable sentence. Most of the evidence was disbelieved by the trial Judge. The rest of it is not worthy of credence, particularly in view of the circumstance that no proceeds of theft were recovered.
4. I, therefore, accept the appeal, set aside, the conviction and sentences passed on Sheeda appellant and order him to be acquitted. The death sentence is not confirmed.
In view of difference of opinion as regards the guilt of Abdur Rashid, let the matter be placed before the learned Chief Justice for nominating a third Judge for final decision of the appeal and the connected murder reference.
QADEERUDDIN, C. J.--I nominated Mr. Justice Ataullah Sajjad.
ATAULLAH SAJJAD, J.-This case was referred to me by his Lordship the Chief Justice on a difference of opinion having arisen as to the guilt of Abdur Rashid, the convict in this case, between my brothers Bashiruddin Ahmad, J. And Muhammad Afzal Cheema, J.
2. The appellant Abdur Rashid alias Sheeda was convicted by the Additional Sessions Judge, Lyallpur, under section 460 of the Pakistan Penal Code and was awarded a sentence of five years R.
I. On this count. He was also' convicted under section 302/34 of the Pakistan Penal Code and was sentenced to death. Bashir--uddin Ahmad, J. Allowed the appeal of the appellant and set aside his conviction and sentences on both the counts. Muhammad Afzal Cheema, J. However, dismissed the appeal in toto.
3. The facts on which the conviction of the appellant is grounded are these: About three years before the occurrence which took place on the night between 19th and 20th October 1966, the appellant.) started living in abadi Kartar Singhwala of Chak No. 223/R. B. With his wife Mst.
Maqsoodan. He was convicted in a theft case and in his absence Mst. Maqsoodan developed a liaison with Ali Ahmad deceased who kept her as a keep in his house. Two illegitimate children were born out of this illicit relationship. After the release of the appellant from jail, he tried to persuade Ali Ahmad deceased to return his wife to him but the latter handed her over to his spiritual leader Karim Khan Pathan of Chak No. 116 of Police Station: Jaranwala who got her married to his brother Amin Khan. Ali Ahmad deceased apprehending danger at the hands of the appellant sent an application Exh. P. U. To the Inspector-General of Police seeking protection from the appellant and praying for initiation of security proceedings against him. This application, according to the evidence on the record, reached the Sub-Inspector concerned after Ali Ahmad had been done to death.
4. Some the after the middle of the night intervening between 19th and 20th of October 1966, Abdur Rashid appellant along with his to companions, namely, Chiragh and Sanatta, who are absconders scaled the outer wall of the courtyard of the house of the deceased and breaking open the inner door of the baithak which opened in the deorhi came into it. All the three persons were armed with guns. We have it in evidence that there was a fourth person standing outside. The deceased Ali Ahmad at that the was sleeping in the baithak with Maulvi Muhammad Shafi (P. W. 12) an Imam of the local mosque. Inayat deceased to whom Ali Ahmad had promised the hand of his daughter and Chiragh Muhammad (P. W. 16) who is the brother of the husband of the sister of the deceased were sleeping in the verandah of the house. Mst. Rani (P. W. 13) and Mst. Raj Bibi (P. W. 14) the to daughters of Ali Ahmad deceased were sleeping along with Mst. Anwar (P. W. 15) the daughter of a neighbour, in a room which is at the back of the verandah where Inayat and Chiragh Muhammad were sleeping. The appellant after effecting his entry in the baithak along with his to accomplices, opened the attack by firing to shots at Ali Ahmad deceased which hit him on his neck and on his left leg. Maulvi Muhammad Shafi was spared because he told the assailants that he was an .Imam of the local mosque. The appellant caught hold of the arm of Muhammad Shafi and took him outside the baithak. Inayat deceased on hearing the gun reports got up from his charpoy and proceeded towards the baithak but his progress was retarded because of the wound that he got in the chest near the throat on account of a shot fired by one of the companions of the appellant.
Inayat receded back to the verandah and sat on the floor. Sheeda appel--lant then fired another shot at Inayat hitting him on the head. Both the injured persons died instantaneously. The appellant along with his to companions then went into the room where the girls were sleeping. He demanded the keys from the to girls who told him that the keys were with their mother who had gone to Gojra for treatment of her eyes. The three culprits then broke open a box and took out some jewellery - and garments. As a token of his goodwill to the girls, the appellant gave them to rupees each by patting them on their heads and saying that his real enemy was their father who had been done to death. The assailants then left the place. After their departure, Maulvi Muhammad Shafi went out of the house and informed Wali Muhammad complainant (P. W. 11) who is the khalazad and sister's husband of Ali Ahmad deceased. Wali Muhammad proceeded to the Police Station Saddar, Lyallpur and lodged report Exh. P. C. At 5-15 a.m. Which was recorded by A. S. I. Abad Muhammad (P. W. 3). This report' contained a graphic description of the incident as given by Maulvi Muhammad Shafi as also particulars of the stolen articles.
5. The Investigating Officer recovered bloodstained earth from the places where Ali Ahmad and Inayat were lying dead. He found three empty cartridges near the outer door of the baithak and four empty cartridges from the courtyard near the inner door of the baithak and one cartridge from, the courtyard. The appellant was arrested on 29th of November 1966.
6. The detail of injuries on the to dead bodies has been given in the judgment of my brother Muhammad Afzal Cheema, J. And I need not refer to them in any detail except that all the injuries on the persons of the deceased were caused by fire-arm, and the penis of Ali Ahmad was found cut and had been put in his mouth.
7. There were no recoveries of any weapons or stolen articles and the fate of the case hangs on the oral testimony of Wali Muhammad (P. W. 11), Maulvi Muhammad Shafi (P. W. 12), Mst. Rani (P. W. 13), Mst. Raj Bibi (P. W. 14), Mst. Anwar Bibi (P. W. 15) and Chiragh Muhammad (P. W. 16). In his statement at the trial, Wali Muhammad (P. W. 11) stated that Maulvi Muhammad Shafi (P. W. 12) had come to his house and told him about the murder of the deceased persons. He also stated that he had heard the gun reports earlier than this information was passed on to him. Wali Muhammad further stated that Maulvi Muhammad Shafi had related the incident to him. He gave the gist of the information imputed to him in the following terms :- "Four persons came to the house of Ali Ahmad and had murdered him. He had also told me that the culprits could not be identified by him. However, when Muhammad Shafi left me, he mentioned the fact that one of the culprits, while leaving the scene of offence was making a lalkara, `I am Sheeda'."
Wali Muhammad further stated during his cross-examination that Maulvi Muhammad Shafi had told him that the culprits had muffled their faces and it was dark at the the of the occurrence. We also find from the statement of this witness that when he reached the house of Ali Ahmad, he did not find any male or female inmate of the house.
Maulvi Muhammad Shafi (p. W. 12) claims to have identified the appellant during the occurrence.
We find from his evidence that this witness originally belongs to the District of Gujrat but was brought by the deceased from Lyallpur to Chak No. 223/R. B. a few months before the occurrence.
As there was no residential quarter in the mosque, he used to live as a temporary guest with different people in the village. On the fateful night he was sleeping in the baithak with Ali Ahmad deceased. At about 1-45 a.m. He woke up on hearing the footsteps of some persons and saw Ali Ahmad deceased sitting on his charpoy. There was a knock at the door and someone asked to open it. Ali Ahmad asked who was outside but no reply came. The culprits then scaled over the wall and came into the courtyard of the house from where they entered in the deorhi and then pushed the door of the baithak which opened into the deorhi proclaiming that there was Sheeda and that Ali Ahmad should be on his guard. The shutter of the door broke open and the culprits entered into the baithak. Muhammad Shafi then identified Sheeda who opened the attack on Ali Ahmad as described above. This witness claims to have seen Sheeda twice in jail in the company of Ali Ahmad deceased. On the first occasion he was taken by Ali Ahmad to the jail in order to show him the man with whose wife he was carrying on. On the second occasion the witness claims to have been sent for by Sheeda. The observations of the learned Addi--tional Sessions Judge who tried the case, however, show that he was not convinced by this latter claim of Muhammad Shafi regarding his second visit to jail to see Sheeda. The claim of Muhammad Shafi regarding identification of the appellant is also based on the following facts :-
(i) that he was caught hold of by the appellant and taken outside the baithak.
(ii) that he was in the room where the girls were sleeping and where the appellant demanded the keys from the girls and gave them to rupees each as a token of his kindness to them.
(i.e) that it was in his presence that the appellant suggested to his co-accused to cut of the penis of the deceased and put it into his mouth. (iv) that the appellant searched his person and deprived him of Rs. 25 which were in his pocket and a wrist watch which was in the fold of his loin cloth.
After the incident, instead of going near the dead bodies, Maulvi Muhammad Shafi went outside the house where Wali Muhammad P. W. Met him. He denied the suggestion put to him in cross-- examination that he had told Wali Muhammad that three or four persons had trespassed into the house and that he had not been able to identify them because of darkness. According to this witness, there was a lantern burning in the baithak and another lantern burning in the room where the girls were sleeping and he was, therefore, able to identify Sheeda in the light of these lamps.
The to girls s. e. Mst. Rani aged 1,5 and Mst. R.I Bibi (P. W: 14) who is only ten years of age, claim to have seen Sheeda firing at Inayat deceased from the verandah. They also stated that Sheeda had given them to rupees each as a token of his good--will towards them. Mst. Rani stated that they had left their house after the incident and had gone to the house of Mst. Anwar where Wali Muhammad also arrived and was told by her that Sheeda accompanied by to other persons had entered their house and had murdered their father and Inayat.
Mst. Anwar (P. W. 15) was declared hostile, as her statement gave the impression that she was not able to identify the assailants. Nor was she able to say as to what weapons were they holding, as it was darkness. When gross-examined by the Additional Public Prosecutor, she admitted that she had made a statement before the committing Magistrate that Sheeda appellant and his to co--- accused had fired in the verandah. The reason that this girl gave for sleeping in the house of the deceased on the fateful night was that her father and Ali Ahmad deceased were the followers of the same Pir.
Chiragh Muhammad (P. W. 16), as stated above, is the brother of the sister's husband of the deceased. His own house is at a distance of 16/17 miles from the place of occurrence but we find it from his statement and that of Mst. Rani (P. W. 13) that he was working at a brick-kiln which is at a distance of to or three miles from the place of occurrence accord--ing to Mst. Rani and three or four squares according to his own statement. This witness stated that he did not identify the assailants but admitted that he had heard one of the assailants shouting that Sheeda had come to take the revenge about his wife. He further stated that he was able to identify Sanatta but did not recognise the other persons.
8. After going through the record, I have formed an opinion that Maulvi Muhammad Shafi, Mst.
Anwar and Chiragh Muhammad are procured witnesses. Muhammad Shafi does not appear to have any knowledge of the people residing in Chak No. 223/R. B. And when questioned he expressed his inability to name the residents of the Chak. According to him he had - been sleeping in the house of the deceased for to or three nights previous to the occurrence but according to Mst.
Rani he had been residing and eating with them for to years. His claim that-be had been taken by Ali Ahmad to jail to see Sheeda appellant appears to be to thin to carry conviction. It is hard to believe that Ali Ahmad would share his amorous secrets with this Imam. In any case his anxiety to show him the man with whose wife he was carrying on is not quite understandable. I find in his evidence that the lanterns burning in the baithak and in the room of the girls were blown of by the accused, The assailants or at least some of them have muffled their-faces and were anxious to conceal their identity. They would have put out the light soon after their entry. Mst. Anwar (P. W. 15) actually stated that the culprits put out the light as soon as they entered the room. Even if this witness was sleeping in the room, it is highly doubtful if in that state of terror lie could have identified the assailants. The first informant who is closely related to the deceased made a candid statement that Muhammad Shafi had told him that he had not identified any of the culprits. The mosque is at a distance of one hundred paces from the place of occurrence and it is just possible that this witness arrived at the spot after the occurrence. While Wali Muhammad claims that Muhammad Shafi came to his house and told him about this tragic incident, the statement of Maulvi Muhammad Shafi is to the effect that Wali Muhammad met him outside the house of the deceased. The assertion of this witness that the appellant gave to rupees to the to daughters of Ali Ahmad deceased in his presence is contradicted by Mst. Raj Bibi (P. W. 14) who stated in her examination-in-chief that no one except the three culprits had entered their room. It is also to be noted that while this witness was a keen observer of all that was happening in the house during the entry of the assailants, he left the house immediately after the incident without going near the dead bodies.
The statements of Mst. Anwar and Chiragh Muhammad P. Ws. Are not, at all--- helpful to the prosecution because none of them professes to have identified the culprits. I also find that there was no apparent reason for Mst. Anwar, who is a young girl, to sleep in the house of the deceased leaving the house of her own parents. Similarly, Chiragh Muhammad appears to be an imported witness. He admitted that he used to sleep, at the brick-kiln but had come to sleep in the house of Ali Ahmad deceased only by chance.
9. Mst. Ran: and Mst. Raj Bibi are the inmates of the house and could have been the natural witnesses of the occurrence. This claim to have seen Inayat being fired at by Sheeda while they were standing in the verandah. This claim is falsified by Muhammad Shafi who states that when the culprits entered the room of the girls, he found the girls hiding themselves underneath the charpoys. Mst. Rani had herself stated before the committing Magistrate that she and her sister and their friend Mst. Anwar remained inside after hearing the reports of the guns and came out of the room for the first the when Sheeda appellant and his Companions left the spot. This appears to be the natural reaction of the young girls who heard shots being fired. They could not have come out of the room and exposed themselves to the firing in the verandah. It is, therefore, extremely doubtful that they saw Inayat being fired at by Sheeda appellant. The fact that Sheeda was proclaiming himself as the avenger of the insult offered to him, was not deposed to by Mst. Raj Bibi and Chiragh. The version of Chiragh was that the fourth person standing at the outer door was shouting that Sheeda had come to avenge the insult. The story that Sheeda gave the to girls to rupees each to show his affection for them, does not carry conviction. It is true that the depths of human mind are hard to be explored and it is difficult sometimes to find a logical explanation for the actions of a human being which appear to be mutually repellent, but it is hard to believe that Sheeda who was depriving the girls of their garments and jewellery could have simultaneously doled out money to them as a token of his goodwill. This appears to be an ingenous story to fix the identity of the appellant. If this happened as stated by Maulvi Muhammad Shafi and the to girls, Wali Muhammad could never have stated that he was told by Muhammad Shah that he was not able to identify any of the culprits. Wali Muhammad does not profess to have gathered any information' from the girls. He did not see the girls in the house and he does not support the version of Mst. Rani that he came to the house of Mst. Anwar (P. W. 15) and heard their narration of facts.
The value of the evidence of Mst. Rani and Mst. Raj Bibi is further diminished by the fact that according to the statement of Raj Bibi both she and her sister were tutored by the Investigat--ing Officer before they appeared to give evidence.
10. It is true that the appellant had the strongest motive to commit the crime. The fact that the penis of Ali Ahmad was cut of and was placed in his mouth is also a very strong indication of the fact that the appellant may have been the, perpetrator of the crime. But as observed by both my brothers, suspicion howsoever strong is not a substitute for proof. The prosecution evidence has failed to bring home the offence to the appellant beyond any reasonable doubt. In my view, therefore, the conviction of the --appellant on both the counts and the sentences passed on him cannot be sustained. I give him the benefit of doubt and acquit him. I allow the appeal and refuse to confirm the sentence of death. The murder reference is answered accordingly.
ORDER OF THE COURT The appeal is allowed. The convictions and sentences of the appellant are set aside and he is acquitted. The sentence of death is not confirmed.